“You get down to survival mode.” That was blogger Roger Shuler’s state of mind after being arrested and hauled off to jail for writing about a politically connected Alabama lawyer.
“Once you’re arrested I mean there’s not much you can do,” he told ThinkProgress in a conversation after his release, explaining that he felt powerless to handle the legal defense of his case. “Your hands are tied literally and figuratively and just to try to figure out how to get out was almost impossible … I really was afraid for my life at times.”
Until last week, Shuler was the only known journalist in the Western Hemisphere jailed for doing his job. Shuler, a former sports reporter and university editor who developed the political blog Legal Schnauzer, is known as a controversial figure in his community. He has fielded other allegations of falsehoods and has been embroiled in numerous lawsuits over his blogging. But even his critics conceded that a court order banning him from writing anything about the alleged extramarital affair of a man rumored to be running for Congress was likely unconstitutional, and a First Amendment outrage.
First, a Shelby County judge ruled that Shuler could not continue writing about the alleged affair of Robert Riley, Jr., the son of former Gov. Bob Riley rumored to be running for Congress. Then, when Shuler refused to comply with the order, police came to his home one evening and arrested him for contempt of court. Contempt of court is a punishment for failure to comply with a court order. In many instances such as this one, it is a “civil” offense, meaning it doesn’t carry long-term criminal penalties. But officials use jail as a means of forcing compliance with the order. So Shuler sat in jail until he complied.
Shuler was initially resistant to the order. But even when he wanted to comply, he didn’t know how.
“At my Nov. 14 hearing, the only hearing I had in the case, the court gave me no direction on how I could purge myself of contempt,” Shuler told the Reporters Committee for Freedom of the Press. “I noted that I had no computer or Web access to take down the posts, even though I knew it was unlawful to be forced into taking them down. The court’s response was more or less that I had to resolve that problem myself. With that kind of response from the court I felt caught between the proverbial ‘rock and a hard place.’”
Shuler said if he was lucky, he got to make a 15-minute call three or four times a week. “That’s the only communication I had with anybody,” said.
And getting a lawyer wasn’t easy. While defendants in criminal cases who cannot afford a lawyer have a right to court-appointed counsel, the same is not true in civil contempt cases. Shuler called himself middle class, and said he would “really need either pro bono or contingency type of legal representation and I think it’s a possibility but it’s very slow in trying to make it happen.”
Shuler was supported by legal briefs in his case from the American Civil Liberties Union of Alabama, and the Reporters Committee for Freedom of the Press. But neither organization was representing him directly, and only he had the power to appeal his own case. Shuler didn’t appeal. He said he spent his time in jail fearing for his life, and figuring out how he could comply with a sweeping contempt order and get out of jail. As the Reporters Committee for Freedom of the Press explained in an October letter, the order included a vague mandate to take down all content related to the alleged affair, without ever deeming which content was actually defamatory.
What ultimately facilitated Shuler’s release was the intervention of his wife, Carol, who drafted an agreement to take down some material that allowed Shuler to be freed at least temporarily. “She was the one that really negotiated getting me out,” he said.
Shuler was perhaps the most prominent inmate in Shelby County jail these last few months, but he says he wasn’t the only one who shouldn’t have been there. Most of the people he met were there for drug and alcohol problems, he said, or for mental health issues the jail didn’t appear suited to handle.
“Jail is I guess by definition a holding facility for people a lot of whom have not yet been found guilty of anything,” he said. (Jails typically hold individuals who have been charged but not yet convicted, or those who receive short sentences, typically less than a year). “I go to bed at night and a lot of times I think there are guys still in there … I get the feeling we’re in a culture right now, it’s sort of like arrest first, and ask questions later.”